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Copyrights

Copyrights protect your creative works and expression, not ideas or facts.

Copyright Basics

What is a copyright?Copyright protects an original work of authorship that is fixed in a tangible medium of expression.

What types of original works are protected by copyright?

The written word (e.g., books, magazines and, journals)

Drawings, prints, and photographs

Websites and blogs

Audio/visual recordings

Expressions of data

Computer software

Architecture

What makes a work “original”?To be original, the work has to be created by the author, and not copied. The work to come from the author’s own effort. Inspiration is OK, but the original work can’t be copied in its entirety or in large part.There are exceptions for works that have gone through some sort of transformation, like works that are done to parody or lampoon an original work.

How is a work affixed in a “tangible medium”?To be affixed in a tangible medium, the work must come out of your head and be put onto paper, film, a computer, or something that can be seen or read. You have to take the intangible and make it tangible for copyright to apply.A great example of something that is not copyrightable is a spontaneous speech. If you deliver the best speech ever, and no one records it or writes it down, is it copyrightable? The answer is no, because it has not been affixed in a tangible medium.

Who owns a copyright?With some exceptions, the person who created the work usually owns the copyright.

Who owns the copyright created by an employee?For works created by an employee within the scope of his or her employment, the employer is generally considered the author. Therefore the employer owns the work. However, if you write the next great American novel at night after doing your accounting job by day, odds are you own the work, not your employer. Under the Copyright Act, work product prepared outside the scope of one’s job is not generally considered a work for hire.

Who owns the copyright created by an independent contractor?For a work created by an independent contractor (or freelancer) to qualify as a “work for hire” and thereby not be owned by the independent contractor, you have to meet three specific conditions:

The work must be “specially ordered” or “commissioned.” What this means is the independent contractor is paid to create something new (as opposed to being paid for an already existing piece of work); and

Both parties must expressly agree in a signed document that the work shall be considered a work made for hire prior to the commencement of work; and

The work must fall within at least one of nine narrow statutory categories of commissioned works listed in the Copyright Act:(1) a translation, (2) a contribution to a motion picture or other audiovisual work, (3) a contribution to a collective work (such as a magazine), (4) as an atlas, (5) as a compilation, (6) as an instructional text, (7) as a test, (8) as answer material for a test, or (9) a supplementary work (i.e., “a secondary adjunct to a work by another author” such as a foreword, afterword, chart, illustration, editorial note, bibliography, appendix and index).

What happens if I hire someone to do work that does not fall within the scope of one of these nine categories, for instance I hire someone to write a smartphone app for my business?When hiring a third party to create a work for you, like a website or illustrations for a new book, you should have a written agreement in place before any work begins. The agreement should contain an assignment clause, assigning you the ownership rights in the entire copyright. Without this assignment, the contractor would own the copyright.If the author will not assign those rights, an alternative is an exclusive license to the copyright. With a license, you do not obtain total ownership of the final work, but the license should give you the right to use the work exclusively.If you do not have ownership or license rights, the author could sell that exact same work to someone else. If there is no written agreement, and you want to make changes, or publish it elsewhere, you will probably need the author’s permission.Another example would be if you hire someone to illustrate your book. Unless there is a written agreement that says otherwise, you may be surprised to learn that the illustrator could become co-owner of the book’s copyright. When you find the illustrator you want, make sure you’ve done all the negotiating and the contract is signed prior to the illustrator picking up her brush or pen.

Who owns the copyright if there are 2 authors?When two or more people create a work together, each of them is considered an author. They are called “joint authors” and they are co-owners of the copyright unless they agree otherwise.

Where do I register my copyright?Copyrights are registered with the U.S. Copyright Office. This office is part of the Library of Congress, and not part of the U.S. Patent & Trademark Office (where patents and trademarks are registered) that falls under the Department of Commerce.Copyrights do not have to be registered. Copyright protection exists the moment you put pen to paper or the moment you take the picture and it’s recorded on film, onto a disk in digital format, or printed on paper. However, if you want to sue someone for copyright infringement in federal court, you do need to register your copyright first.

How do I register a copyright?It’s fairly easy to register a copyright at www.copyright.gov.You fill out a form, attach a copy of the work, pay a fee, and submit everything, either electronically or by mail, to the U.S. Copyright Office.

How long does it take to get a copyright registration?You can get a copyright registration in about three to six months.

How long does a copyright last?Copyrights last a long time. For people, a copyright lasts the life of the author plus 70 years. Some companies are lobbying hard to get that time extended. For works made for hire and employee works attributed to companies, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter.

A Few Important Things to Know about Copyrights

1. Notice
Copyright notice is the way copyright owners alert the public that the work is protected under the law. Notice in copyright has three parts.

There are 3 types of copyright infringement: Direct, contributory and vicarious.

Direct infringement occurs when a person without authorization reproduces, distributes, displays, or performs a copyrighted work, or prepares a derivative work based on a copyrighted work.

Contributory infringement is when you cause or help someone else infringe but you don’t actually commit or participate in the infringing acts yourself. For instance a file sharing website that allows you to download music that is being shared illegally amongst its users could be considered a contributory infringer. To succeed on a contributory infringement claim, the copyright owner must show that the web master or service provider actually knew or should have known of the infringing activity.

Vicarious Infringement is another form of indirect copyright infringement. It occurs when you have some control over the infringing acts but did nothing to stop them and in fact you profited from the infringing acts of others.

3. Fair Use
The doctrine of fair use is a defense to an allegation of copyright infringement. This doctrine allows for a limited use of copyrighted material without acquiring permission from the owner.

This exception is allowed in cases of commentary and critique, news reporting, or when the work is used for education purposes. TV film critics can show a clip from the movie they are reviewing. A history teacher may show a documentary to her class without fear of infringing.

There are limits to how much and what you can use under the fair use doctrine. You have to be careful that you aren’t showing or using the whole work or a substantial part of the work or that your use of the work doesn’t damage the value of the original work.

4. Damages in Copyright Cases
People or entities who are found to infringe someone’s copyright may to pay the copyright’s owner monetary damages which can be substantial.

In a civil suit, an infringer may be liable for a copyright owner’s actual damages plus any profits made from the infringement. However, this can be difficult to prove.

For this reason, a copyright owner can opt to recover a statutory damage award of up to $30,000 or, where the court determines that the infringement occurred willfully, up to $150,000, per work infringed. The actual amount will be based upon what the court considers just. Defendants who can show that they were “not aware and had no reason to believe” they were infringing copyright may have the damages reduced to as little as $200 per work.Violation of copyright law is also considered a federal crime when done willfully with an intent to profit. Criminal penalties can include up to ten years in jail depending on the nature of the violation.

The Adler Pollock firm has an excellent litigation practice in Rhode Island, which is my only experience with the firm. They frequently represent our company on significant litigation. Every lawyer I have worked with there has been knowledgeable, responsive, and an excellent advocate.